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American Immigration Council and AILA File Suit against USCIS over H-1B Lottery

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Every year, USCIS approves 65,000 cap-subject H-1B visas and an additional 20,000 H-1B visas for candidates with advanced degrees. Every year for the past ten years, the number of applicants for these visas has exceeded the cap. When this happens, CIS initiates a lottery that utilizes a computer-generated randomized selection process to determine which petitions get reviewed and which get returned to the sender.

The H-1B lottery has always been shrouded in mystery. Despite claims of commitment to transparency, CIS has not been forthcoming with information about the mechanisms of this lottery. There is no way to hold CIS accountable for this process and possible flaws or unfairness resulting from it. There is no way to tell whether this process even holds up to statutory standards without the ability to see and review it. For this reason, a lawsuit has been brought against CIS and the US Department of Homeland Security by the American Immigration Council and the American Immigration Lawyers Association with the purpose to seek information about the inner workings of the H-1B lottery process.

H-1B visas are dual-purpose, non-immigrant visas that allow highly skilled foreign nationals with a US bachelor’s degree or its equivalent or higher to live and work in the United States for increments of three years to fill specialized job positions. Demand for highly skilled workers with highly specialized skills and knowledge in the rapidly expanding US IT industry has been a driving force for the number of H-1B petitions filed growing every year. CIS must continue to accept H-1B petitions for at least one business week before closing its doors. The past two years, the cap has been exceeded within five days of when CIS begins accepting petitions.

While the lawsuit is a good step in the right direction to bring some insight and accountability to the mysterious H-1B lottery process, there is little that can currently be done by H-1B candidates and their employers and lawyers to affect whether or not the petition makes the lottery. Besides filing on April First, of course.

“The internal workings of the H-1B lottery system are out of all of our control or understanding for now,” International education expert and executive director of prominent foreign credential evaluation agency TheDegreePeople, Sheila Danzig explains. “What you can influence is what happens when your petition makes the lottery, and you can influence this by understanding CIS trends for what gets approved and what does not.”

H-1B visa requirements are largely based on the nature of the candidate’s job and education. For this reason CIS trends surrounding requirements pertaining to these facets are important to understand and anticipate. This is the difference between your visa or your employee or client’s visa getting approved or receiving an RFE or worse. These trends also change, and have changed over the past five or six years and the number of H-1B petitions flooding in has increased.

Danzig recommends consulting with a credential evaluator who consistently works with H-1B cases and RFEs before filing a petition or responding to an RFE. Evaluators who do the difficult work gain a complex understanding of international education norms, CIS trends, and what works and what does not work.

“Forget about the lottery and focus on what you can do,” advises Danzig.